NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Postar Coal Company, Inc. and United Mine Workers of
September 25, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
Upon a charge filed on September 13, 2007, by the Charging Party, United Mine Workers of America, AFL–CIO (the Union), the General Counsel of the National Labor Relations Board issued a complaint on November 29, 2007, alleging that the Respondent, Postar Coal Company, Inc., violated Section 8(a)(5) and (1) of the Act by failing to provide health insurance coverage to laid-off unit employees established pursuant to the provisions of article XX of the National Bituminous Coal Wage Agreement of 2002, as extended by a March 22, 2007 memorandum of understanding. Copies of the charge and complaint were served on the Respondent. The Respondent filed a timely answer denying the commission of any unfair labor practices.
On February 25, 2008, the General Counsel, the Respondent,
and the
On August 14, 2008, the Deputy Executive Secretary, by
direction of the Board, issued an Order approving the stipulation and
transferring the proceeding to the Board.
The General Counsel thereafter filed a brief, and the
On the entire record and the briefs, the Board[1] makes the following
Findings of Fact
i. jurisdiction
The Respondent is a corporation that engaged in the
operation of a coal mine known as Postar No. 1 located near Cucumber, West Virginia,
where it purchased and received goods valued in excess of $50,000 directly from
points outside West Virginia. The
parties have stipulated, and we find, that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act, and that the
ii. alleged unfair labor practices
A. Factual Background
The
The health insurance plan included in article XX of the
2002 NBCWA provided for benefits for a laid-off employee for up to a year if
the covered employee worked 2000 hours in 24 consecutive months immediately
prior to the layoff. On March 22, 2007,
the parties entered into another memorandum of understanding (MOU) extending
the terms of the expired NBCWA to May 1, 2007, unless mining was complete before
that date and/or the mine had been abandoned and was in the process of being
sealed in accordance with Mine Safety and Health Administration
regulations. The Respondent had previously
informed the
The Respondent ceased operations at Postar No. 1 on about
May 8, 2007, and laid off all unit employees.
On June 1, the Respondent sent letters to the laid-off employees
advising them of the discontinuation of their health benefits effective June
30, 2007. The Respondent failed to give
the Union notice and an opportunity to bargain about this action and has failed
to provide health care benefits to laid-off unit employees since June 30.
B. The Parties’ Contentions
The General Counsel and the Union contend that, under the NBCWA, as extended by the parties’ 2007 MOU, the Respondent was required to provide health benefits to a laid-off employee for up to a year if the covered employee worked 2000 hours in 24 consecutive months immediately prior to the layoff. When the Respondent discontinued health benefits for all laid-off employees effective June 30, 2007, claiming an inability to pay, it violated Section 8(a)(5) and (1) of the Act, inasmuch as a financial inability to pay is no defense of unilateral conduct. To remedy this violation, the General Counsel maintains that interest on monetary awards to the employees for losses resulting from the Respondent’s action should be compounded on a quarterly basis.
The Respondent does not deny its obligation to provide health benefits to laid-off employees for up to 1 year. It argues that it failed to continue providing these benefits because it was no longer able to pay for them. The Respondent states that its financial distress was further evidenced when it filed for bankruptcy on January 11, 2008.
iii. discussion
We find merit in the complaint’s allegation that the Respondent violated the Act. The NBCWA, as extended by the March 22, 2007 MOU, provided that laid-off employees who worked the required number of hours preceding their layoff should continue to receive health insurance benefits for up to a year. Consequently, qualified employees laid off on May 8, 2007, would be entitled to receive these benefits until as late as May 8, 2008. Health care benefits are a mandatory subject of bargaining. The Respondent’s undisputed unilateral cessation of these benefits for laid-off employees was therefore unlawful. Hen House Market No. 3, 175 NLRB 596, 602 (1969), enfd. 428 F.2d 133 (8th Cir. 1970) (unilateral change in contractually provided health benefit plan after contract expiration violates Section 8(a)(5)).[2]
The Respondent’s only asserted defense is that it was no longer financially able to provide the benefits. However, a financial inability to pay does not constitute an adequate defense to an allegation that an employer has violated Section 8(a)(5) of the Act by failing to maintain established terms and conditions of employment. E.g., The Pantry Restaurant, 341 NLRB 243, 244 (2004), citing Convergence Communications, Inc., 339 NLRB 408 (2003). Accordingly, we find that the Respondent violated Section 8(a)(5) and (1) of the Act.
Conclusion of Law
By failing to continue in effect established terms and conditions of employment by unilaterally discontinuing health care coverage of its laid-off unit employees, the Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Specifically, we shall order the Respondent to give effect to the existing terms and conditions established under its collective-bargaining agreement with the Union regarding the provision of health insurance coverage for laid-off employees by making whole unit employees for any expenses they may have incurred due to the unilateral cessation of health benefit coverage, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).[3]
Further, inasmuch as the Respondent closed its mine and laid off all employees on May 8, 2007, prior to its unlawful cessation of health benefits for laid-off employees on June 30, we shall order the Respondent to mail a copy of the attached notice to the Union and to the last known addresses of unit employees possibly affected by this unlawful conduct. This would include all unit employees employed on and after July 1, 2006.
ORDER
The National Labor Relations Board orders that the Respondent, Postar Coal Company, Inc., Cucumber, Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
All employees engaged in the production of coal, including the removal of overburden and coal waste, preparation, processing, and cleaning of coal, and transportation of coal (except by waterway or rail), repair and maintenance work normally performed at the mine site or at a central shop of Respondent; and maintenance of gob piles, and mine roads, and work of the type customarily related to all of the above; but excluding all office clerical employees, and all professional employees, guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Give effect to the terms of health insurance coverage for laid-off unit employees that existed prior to their unlawful discontinuance on June 30, 2007.
(b) Make whole, in the manner set forth in the remedy section of this decision, unit employees for any losses, plus interest, resulting from the Respondent’s failure to maintain in effect existing terms for health insurance coverage for laid-off employees.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, mail copies of the attached notice marked Appendix,[4] at its own expense, to the Union and to all employees who were employed by the Respondent at its Postar No. 1 mine in Cucumber, Virginia, on or after July 1, 2006. The notice shall be mailed to the last known address of each of the employees after being signed by the Respondent’s authorized representative.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Peter
C. Schaumber, Chairman
Wilma
B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Mailed by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to mail and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not fail and refuse to bargain collectively with the United Mine Workers of America, AFL–CIO (the Union), as the exclusive bargaining representative of the below unit of our employees at the Postar No. 1 mine, by unilaterally discontinuing terms and conditions of employment relating to the provision of health insurance benefits for laid-off employees:
All employees engaged in the production of coal, including the removal of overburden and coal waste, preparation, processing, and cleaning of coal, and transportation of coal (except by waterway or rail), repair and maintenance work normally performed at the mine site or at a central shop of Postar Coal Co., Inc.; and maintenance of gob piles, and mine roads, and work of the type customarily related to all of the above; but excluding all office clerical employees, and all professional employees, guards and supervisors as defined in the Act.
We will not, in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will give effect to the terms of health insurance coverage for laid-off unit employees that existed prior to our unlawful discontinuance of health benefits on June 30, 2007.
We will make whole unit employees for any losses, with interest, resulting from our failure to continue in effect existing terms for health insurance coverage for laid-off employees.
Postar Coal Co., Inc.